Board of Supervisors v. Dixie Brewing Co.

200 So. 3d 977, 2015 La.App. 4 Cir. 1053, 2016 La. App. LEXIS 1614, 2016 WL 4585907
CourtLouisiana Court of Appeal
DecidedSeptember 1, 2016
DocketNo. 2015-CA-1053
StatusPublished
Cited by7 cases

This text of 200 So. 3d 977 (Board of Supervisors v. Dixie Brewing Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Supervisors v. Dixie Brewing Co., 200 So. 3d 977, 2015 La.App. 4 Cir. 1053, 2016 La. App. LEXIS 1614, 2016 WL 4585907 (La. Ct. App. 2016).

Opinion

SANDRA CABRINA JENKINS, Judge.

| iThis is an appeal from an award of $2,503,651.26 in attorneys’ fees to Dixie Brewing Company (“Dixie”), the owner of property that was expropriated by the Board of Supervisors of Louisiana State University (the “Board”) for the construction of a new Veterans Affairs Medical Facility in New Orleans. For the reasons that follow, we affirm the trial court’s June 4,2015 judgment.

[980]*980FACTUAL AND PROCEDURAL BACKGROUND

The long history of this expropriation began on April 29, 2010, when the Board filed a Petition for Access to Property for Inspection Prior to Filing of Expropriation (the “Petition for Access”) in order to gain access to property located at 2401 Tulane Avenue in New Orleans (the “Property”). The Property comprised approximately a full city block, and included a 1907 historic brewery facility. The Petition for Access sought permission to conduct inspections of the Property necessary for the Board to make an offer of just compensation to Dixie. After the inspection, the Board sent Dixie a written offer to purchase the Property for $52,285.00. Dixie refused the offer.

On February 16, 2011, Dixie filed a Petition for Declaratory Judgment, Temporary Restraining Order, and Preliminary Injunction (“TRO Suit”) against the |2Board, seeking to prevent the expropriation and demolition of the buildings on the Property. Although the trial court issued a TRO that day, after conducting a hearing on February 25, 2011, the trial court dissolved the TRO and dismissed Dixie’s TRO Suit, with prejudice.

On that same date, the Board filed a Petition for Expropriation (“Expropriation Suit”) against Dixie and the City of New Orleans (the “City”) to expropriate the Property, which the Board wanted in connection with the construction and development of the new Veterans Affairs Medical Facility, to be located adjacent to the Board’s new University Medical Center.1 Contemporaneously with the filing of the Expropriation Suit, the Board deposited $52,285.00 into the registry of the court as “its estimate of the just compensation” for the Property. As part of the Expropriation Suit, the Board also requested that Dixie be ordered to pay all outstanding property taxes, penalties, and interest on the Property; and that the City be ordered to cancel all liens and judgments for taxes or otherwise on the Property.

On June 23, 2011, Dixie filed an Answer and Reconventional Demand, in which Dixie asserted that the full value of the Property was $9,146,100.00. In June |¾2011, Dixie also filed a Motion to Dismiss the Expropriation Suit, challenging the constitutional validity of the expropriation.

Between 2011 and 2014, Dixie and the Board litigated various post-expropriation petitions for injunctive relief challenging the constitutionality of the expropriation, and various exceptions of res judicata, no cause of action, and no right of action, three of which reached this court. See Bd. of Supervisors of La. State Univ. v. Dixie Brewing Co., 11-1339 (La.App. 4 Cir. 9/27/11) (unpub.) (denying Dixie’s writ application on motion to consolidate Expro[981]*981priation Suit with TRO Suit); Bd. of Supervisors of La. State Univ. v. Dixie Brewing Co., 13-0250 (La.App. 4 Cir. 12/4/13), 131 So.3d 130 (affirming' trial court’s judgment granting the Board’s exception of res judicata and dismissing Dixie’s second injunction petition); Bd. of Supervisors of La. State Univ. v. Dixie Brewing Co., 14-0641 (La.App. 4 Cir. 11/19/14), 154 So.3d 683 (granting writ, no relief given from denial of Dixie’s exception of res judicata).

In February 2015, the parties participated in a mediation, which failed to resolve their dispute. Thereafter, the parties attended a two-day settlement conference with the trial court. As a result of -this conference, on March 4, 2015, the parties recited in open court their agreement in principle to settle the matter. The parties agreed that the terms presented on the record would supersede any written agreement to the extent that the terms conflicted.

On March 10, 2015, the parties entered into a written “Settlement, Stipulation and Release Agreement” (the “Settlement Agreement” or “Agreement”). The pertinent terms of the parties’ compromise, which included both the written Settlement Agreement and the terms recited in open court, included' the following “consideration”: (1) the State’s . payment of $4,350,000.00 |4to Dixie; (2) permitting Dixie to withdraw the $52,285.00 deposited by the Board in the registry of the court; (3) the City’s cancellation of a 2008 tax judgment against Dixie and other companies for past-due property taxes, which the parties agreed was valued at $2,162,477.06; and (4) the City’s agreement not to enforce any tax lien or penalty for taxes on the Property from 2008 through the date of the expropriation, which the parties agreed was valued at $1,074,345.47.

The Settlement Agreement further stated that the sums of $4,350,000.00 and $52,285.00, “together with the other consideration stated in this Agreement ... including the amount of attorneys’ fees, costs, and expert witness fees to be awarded by the Court, represented] the full extent of Dixie’s losses, within the meaning of Louisiana Constitutional [sic] Article I, Section 4.”

The Settlement Agreement also addressed how the issue of attorneys’ fees and costs would be decided. The Agreement included a provision under which Dixie’s attorneys could apply to the trial court, through a Motion for Fees and Costs, for an award of attorneys’ fees, costs and expert witness fees. In the Settlement Agreement, “The Board reserve[d] the right to oppose any portion of Dixie’s Motion for Fees and Costs filed by or to be filed by Dixie to the extent that any request is unreasonable or out of line with amounts awarded in similar cases.”

On March 10, 2015, Dixie filed an Application for an Award of Attorney Fees and Costs (“Application for Attorneys’ Fees”). Dixie requested $3,644,709.00 in attorneys’ fees. Dixie calculated this figure based on 40% of $9,111,773.00, which Dixie argued was' the $7,586,822.00 in additional compensation obtained in settlement, plus $1,523,951.00 in judicial interest.

On March 13, 2015, the Board filed an Opposition to Dixie’s Application for Attorneys’ Fees, arguing that the attorneys’ fees should be calculated based solely |Bon the $4,350,000.00 in monetary compensation paid to Dixie. .The Board also argued that the 40% figure was unreasonable. The trial court held evidentiary hearings on this issue on April 16, 2015 and April 21,2015, and read its reasons for judgment in open court on May 6,2015.

On June 4, 2015, the trial court signed a written “Final Judgment on Attorney Fees [982]*982and Costs” (“Final Judgment”). The Final Judgment awarded Dixie $2,503,651.26 in attorneys’ fees, which represented 33% of the $7,586,822.00 in additional compensation recovered in the settlement.2 This $7,586,822.00 figure included amounts paid to Dixie, as well as- the value of the tax judgment and tax liabilities cancelled and/or forgiven by the City. The Final Judgment denied Dixie’s request for 5% interest on the total just compensation, but awarded Dixie the stipulated sum of $173,000.00 in costs.

The Board appealed. On December 17, 2015, Dixie filed a “Motion to Dismiss Appeal, Answer to Appeal and Appellee Brief.”3

DISCUSSION

Dixie’s Motion to Dismiss Appeal

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200 So. 3d 977, 2015 La.App. 4 Cir. 1053, 2016 La. App. LEXIS 1614, 2016 WL 4585907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-supervisors-v-dixie-brewing-co-lactapp-2016.